September 29, 2005

Yesterday, Scalia and Breyer debated at Harvard Law School (via How Appealing). Much of it is more of the usual stuff about citing foreign law, but this is interesting:

During a question-and-answer session, one student asked the panel about the potential political pressures involved in the controversial Bush v. Gore case. Frankfurter Professor of Law Alan M. Dershowitz had suggested that he direct the question toward Scalia, he explained.

“He’s still mad at me, isn’t he?” Scalia retorted jokingly, before adding, more seriously, that he had not witnessed any justice take into account “political considerations” in deciding the case.

Breyer added that he had never seen any evidence of politics influencing a court decision. Even so, he said, ideological beliefs occasionally surface.

Scalia said that the politicization of the Supreme Court could be attributed to the emergence of a “judicial philosophy which says the Constitution is indeterminate.”

“It will become unpoliticized, as it relatively used to be, as soon as we go back to saying the Constitution means what it says, and it means what it meant when it was adopted,” he said.

Seems highly unlikely. By the way, Roberts -- the Chief Justice -- never embraced that view of the judicial role.

43 comments:

"Seems highly unlikely" that it will ever happen (I agree) or "Seems highly unlikely" that it would depoliticize things greatly (I dissent)? I find it unclear from your phrasing if you disagree with Scalia's theory or if you think it is a theory that will never be tested.

Vincent Bugliosi, former California prosecutor whose convictions sent Charles Manson and other murderers to prison, goes much further than those tepid editorialists. In Bugliosi's view, the conduct of the five conservative members of the court (Rehnquist, Scalia, Thomas, O'Connor and Kennedy) bordered on treason. In his article, published in The Nation, Feb. 5, he wrote, "It misses the point to argue that the five justices stole the election only if it turns out that Gore overcame Bush's lead in the undervote recount. We're talking about the moral and ethical culpability of these justices ... To judge these justices by the final result rather than their intentions at the time of their conduct would be like exonerating one who shoots to kill if the bullet misses the victim."

There is virtual unanimity among law professors and jurists, conservative as well as liberal, who have condemned this action by the Supreme Court's conservative majority. Justice Scalia's principal justification for issuing a stay on the Florida recount resumption, permitted by the Florida Supreme Court, was that the recount would "threaten irreparable harm to petitioner (Bush) ... by casting a cloud upon what he claims to be the legitimacy of his election." Scalia assumes here that Bush has won, but it is also clear that he feared that if the recount continued, the election could go to Gore. Taking issue with this hollow opinion, judicial conservative Terrance Sandlow stated, "The balance of harms so unmistakably were on the side of Gore," and further, the stay was "an unmistakable partisan decision without any foundation in law."

This is another marvellous Scalia-ism: "I agree that if you believe in a living Constitution...then of course consult foreign law. Why not? I mean, consult a Ouija board."(http://www.thecrimson.com/today/article508682.html)

TELL me there's a full transcript of this. ;)

I actually very much want to ask Justice Scalia - off the record - how he viewed Bush v. Gore, how he manages to make it fit into all his previous equal protection jurisprudence. I've been looking, and I can't figure it out. Unfortunately, he doesn't seem to make a habit of speaking at IU.

He is, of course, completely correct, in my view. If the judiciary have the role of saying what the law is (which they do), and the constitution is not fixed in meaning (which it is, IMO), then almost by definition there will be a continuing battle over whose agenda the judges will serve, because they are necessarily serving someone's.

When Roberts said his job was "to call balls and strikes," he was asking the Senate Judiciary Committee to ask itself, What is a strike? Originalists in these matters might say that a strike is what its 1887 rulebook definition says it is, "a pitch that 'passes over home plate not lower than the batsman's knee, nor higher than his shoulders.' " Or they might accept some more recent official definition.

But a strike has never been what the rulebook says it is. This elementary unit from which a baseball game is constructed is whatever an umpire says it is. Ken Kaiser, who umpired in the American League from 1978 to 1999, stated this truth with philosophical precision in his memoir, Planet of the Umps.

"The strike zone as defined in the rule book … is a myth. It doesn't exist. It's a nonexistent imaginary box. It has always not existed," Kaiser writes.

According to Kaiser, no two umps see the same strike zone. They view the plate from different angles, react differently to pitches, and change their opinion of what a strike is from batter to batter. When umpires say they call balls and strikes the way they see them, they mean it literally. They are the strike zone.

Likewise, the law is whatever Supreme Court justices say the law is. Just as no two umps see the same pitch, no two justices view the same judicial strike zone. If they did, every decision would be 9-0. Oh, the justices are supposed to draw on the Constitution and consult binding precedents in their rulings, just as umpires are instructed to call games in accordance with the contents of the Major League Baseball rulebook. But established law and baseball rules are sufficiently complex to leave wiggle room for less than objective edicts from justices and umps. As Kaiser puts it, "The best way to stop an argument is to quote the specific rule that you used to make a call, even if you have to make up that rule."

It drives me nuts - in the arts, religion, law, whatever - when people claim to have this magical ability to know what people writing hundreds of years ago meant.

I'm not opposed to saying we should TRY to be originalist, or that we should TRY to understand original intents. I do believe we should all try to circle around a common sense of meaning.

But the idea that the Original Intent of nearly anything is manifest and plain, as Scalia says of the constitution, is the worst kind of narcissism. Scalia speaks as if the original intent is just so obvious. Everyone else's interpretation is nothing but willful manipulation.

I get off the bus when ANYONE claims a monopoly on the truth by declaring it obvious. Whether it's the constitution, the bible, Dylan lyrics, etc.

If abortion politics went away perhaps we would see less politicizing becuase more judges like Scalia and Thomas would be easily accepted.

I think more people would be worried about liberal judges making stupid decisions such as allowing Osama Bin Ladin appeal rights to federal courts, forcing private businesses to allow persons to decide their own sex when choosing which bathrooms to use, or deciding that the death penalty is immoral because people in France think it is immoral.

Unfortunatley these concerns are crowded out by abortion politics, which, is further stupid because abortion would remain legal in every state even if Roe was overturned. Abortion politics is used by the left to get the leftist agenda through the court. Without Roe, the court would be far more conservative today.

Sloanasaurus wrote:"Unfortunatley these concerns are crowded out by abortion politics, which, is further stupid because abortion would remain legal in every state even if Roe was overturned. Abortion politics is used by the left to get the leftist agenda through the court. Without Roe, the court would be far more conservative today."

I think you're way underestimating the clout of right to life forces in a state like Wisconsin.

Here's a question:What happens if the court, with George W. Bush's three best shots (I'm giving him Roberts and two more) affirms Roe v. Wade in some yet unknown case. Does right to life give up, keep harranging legislatures for purposes of creating wedge issues, or keep trying to make minor changes in the law realizing that the big enchilada of a total ban is beyond reach for at least a generation?

"Scalia speaks as if the original intent is just so obvious. Everyone else's interpretation is nothing but willful manipulation."

Well, don't we have a lot of documentation as to what the Founders meant when they wrote the Constitution; whereas, we don't have such documentation about the Bible, etc. I think there's a real difference there.

I think Scalia's view on Bush v. Gore was pretty clear, since he concurred with Rehnquist's opinion that the Florida Supreme Court had violated Article II of the Constitution. For what it's worth, I think that the equal protection portion of the decision is bogus, since it is clear that the legislatures of the several states are free to decide how the electors are to be chosen, which presumably includes decisions to delegate the authority to local officials under the Voting Rights Acts.

Replying to StrangerInTheseParts - you are attacking a straw man, my friend. By attacking original intent, you are attacking a theory which is not only indefensible, but undefended; virtually no serious originalist believes that the original intent controls; Scalia and Bork both spent huge chunks of their books and speeches explaining in great depth why there probably IS no single original intent, even if there were, we would find it almost impossible to determine, and even if there were and we could, it wouldn't control anyway. What governs are the words they chose that were democratically adopted. The theory of originalism, as it is widely practised, is concerned with, what did those words mean to a reasonable person at the time the document was adopted? This is the theory of original meaning, and it is knowable. We have a wealth of information contemporaneous (or roughly so) to the constitution, ably supported by the traditions and practises sustained under the constitution for most of our history.

Of course, determining a meaning may cange as information becomes available, and how then to apply that meaning to a given case or controversy is still at issue, which is one reason why originalists do not always agree. Scalia and Thomas reach utterly different conclusions on a semi-regular basis. I disagree strongly with my originalist brethern on the negative commerce clause. It is not so formulaic as its opponents would have you believe, nor nearly so cryptic. It only becomes complicated when you start approaching cases from completely the wrong direction: when you determine what seems a reasonable outcome and then looking for support (which is what Breyer, Ginsburg et al do), rather than determining which provisions are implicated in the case, what they meant when adopted, and how they apply to the case at hand, the latter approach being the only way to maintain the sovereignty of the constitution.

In response to several commenters, I really think this to be a canard. Most pro-choice folks claim that the vast majority of Americans are pro-choice "to one extent or another" (important qualifying phrase, this). Well, if pro choice folks are such an overwhelming majority, then there's no argument against overruling Roe - the case was wrongly decided, it has had a corrosive and corrupting effect on the Supreme Court nomination process, and the right it protects would not be threatened by legislative action anyway. So what's the problem? Why keep fighting to defend the indefensible-but-irrelevant case?

In any instance, I could accept legal abortion by legitimate democratic process far more than I can accept its imposition by judicial fiat. But I think you're wrong; I think that the majority of Americans are actually far less pro choice than the pro choice lobby would like to believe, and only a little less pro-life than the pro life lobby like to believe. So what say we give it a go and see who's right?

Sloanasaurus, I beg to differ. Without Roe, the whole political landscape would be different, but probably not as conservative.

Right now, "pro-life" is a fuzzy term. It includes (and unites) those who think there should be a total ban on abortions and those who want to include a few exceptions. Should Roe be overturned, these folks will fight amongst themselves.

Why do Democrats spend so much time fighting for Roe? I don't know. Might have something to do with their tendency to shoot themselves in the foot.

The decision today over the Abu Garib photos is exactly what I am talking about regarding these judges. These types of rulings will lead to civil war in this country. These left wing judges need to watch it. This isn't a game. This is about peoples lives. This judge Hellerstien is a disgrace.

I happen to be litigating a case before Judge Hellerstein right now, and he's considered beyond reproach--smart and knows his stuff. And attacking him as not understanding the military would seem a little silly, since he served three years as a JAG. Disagree with his decision if you want (I am no FOIA specialist, but it seems correct to me), but impugning that judge's integrity (or any judge's) without good cause should not be done.

Disagree with his decision if you want (I am no FOIA specialist, but it seems correct to me), but impugning that judge's integrity (or any judge's) without good cause should not be done.

Careful Matt, I am somewhat new here but Ann told me just the other day that she has a certain culture here, and sloanasoarus is definitely near the top of the pecking order. Ann is derned proud of the culture growing on her blog and rightly so!

"...but impugning that judge's integrity (or any judge's) without good cause should not be done...."

I don't get what you mean "without good cause" the decision is a total joke. What possible rational balancing act does the principle of open government in this case outweigh the probable cost to our national security.

We have already seen the pictures. Why do we need to see more?

Releasing these pictures will cause nothing but more death. I cringe after I hear all you leftys say "I support the release of these photos on principle.....oh yeah and I also support our troops!"

the real difference is actually between those who think roe v. wade is an abysmal decision as a matter of constitutional law, but who would, as voters or legislators, support abortion on demand, and those who think abortion should be outlawed.

"Careful Matt, I am somewhat new here but Ann told me just the other day that she has a certain culture here, and sloanasoarus is definitely near the top of the pecking order. Ann is derned proud of the culture growing on her blog and rightly so!"

If one reads your comments, they can safely infer that you have some bigotry in your soul. The only question is if you are aware of it, or not. I am betting you are.

Simon says, "I could accept legal abortion by legitimate democratic process far more than I can accept its imposition by judicial fiat" - whew! What a breath of fresh air amidst the stench of precedent.

On the question of Roe: it seems to me that many (okay, a weasel word) of the folks opposed to Roe want the court to give them what they are afraid they can't get through the legislative process: a ban on abortion. They might be surprised to find out what happens should Roe be overturned. Hey, if I ran things, I'd toss out Roe and leave it to the states. Messy? Yes. Democratic? Yes. The way our founding fathers meant it to be? Yes.

I think the court made the mistake of thinking that they could step in and solve a problem that was dividing Americans. Instead they just stepped in it. Same happened with Bush v. Gore.

A very good post....but you did not really escape the problem by shifting the definition of Original Intent to "what did those words mean to a reasonable person at the time the document was adopted"

I think people who actually lived though, say, the 1950's, would have a very very hard time today agreeing who was reasonable in that time, and what they really meant by any words they wrote back then. The problem compounds many times when you move back 2 centuries. (Again - I don't object to the desire to recover orignial intenet - I am repulsed by claims that it can be done in a way that is not very subjective, political. In short, Original Intent cannot be recovered without reproducing all the conflict that exists when the battle is framed between originalists and, say, activits, or however Scalia smears people who honestly disagree with him.)

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RE: the Roe thread.

I'm surprised by the claim that if Roe goes down and then the states legally legalize abortion, people will be more willing to accept that outcome.

People are ballistic about this issue because they think it is just wrong. There will be much hoopla as long as abortions are performed.

(Consider if the SC had decided in Bush v. Gore that the recount should continue and BUSH WON THE RECOUNT. The SC would be out of the polliticking, but the Left would still never have accepted the result and would have called Bush a pretender his whole first term anyway.)

I agree that for the political parties, etc overturning Roe will change a LOT of things.

But are there or aren't there MILLIONS of Americans who are fundementally outraged that abortions are performed? If there are, then either A) they will continue to fight for what they believe in at the state level or B) They will accept the new state laws and reveal themselves to be rather disengenuous.

Whether or not Abortions are Right is a much larger motivating issue than whether or not Roe V. Wade was a constitutionally appropriate decision for the SC to make.

It strikes me funny to suggest that more people are upset about a bad legal precedent than about the act of abortion itself.

If Roe were overturned and it went back to the states, I think you would indeed see some states enact significant restrictions on abortion. I don't think it would change Republicans' positions on abortion much because more conservative states already have more conservative legislatures, and vice versa.

And I bet that it would pretty much follow the red/blue divide. A recent survey suggests this pretty strongly.

I don't think many pro-life people are scared of what would happen if Roe were overturned. I think they would be excited and energized, certainly in states where there's a chance of enacting more pro-life laws. Pro-lifers in more liberal states don't stand to lose anything absent Roe, anyway.

The court will be de-politicized if it appears to come to a consensus on issues and the number of dissents and concurring opinions are reduced. The way for that to happen is for Maureen Mahoney to be confirmed to replace Justice O'Connor. A Roberts-Mahoney voting bloc -- similar to two Rehnquist votes -- is a gain over a Rehnquist/O'Connor split. What's more, where the Scalia-Thomas bloc is predictable, but Meanie Nino might scare off Kennedy, Mahoney and Roberts can pull Kennedy in. After all, these are the litigators who got him to bite on gay rights and affirmative action in the first place!

I think you are right to say that pro-lifers will be highly energized when Roe goes down. I think this will only augment their rage as they watch huge portions of the country, state by state, decide it is a legal practice. Like zealots on any side of an issue, they falsely believe more people agree with them then actually do.

I wonder how much this country is really willing to let each state become an island unto itself on these social issues. Gay marriage, pot smoking and abortions for these states, school prayer, vouchers, ten commandment statues for these states. It's nice to think we could all learn to live and let live this way, but.....it just doesn't seem plausible does it?

I disagree on whether pro-life politics is a winner post-Roe, but I think we'll all just have to wait and see on that one.

Regardless, free-market conservatives will continue to need the present alliance with social conservatives to achieve their economic priorities. Judging from polls, public agreement with economic conservative positions regarding, say, spending on social programs is lower than agreement with pro-life positions. Anyway, many of the same poeple who are social conservatives are also key supporters of free-market capitalism based on its social virtues. So we'll still be together despite your insults.

Nice to be called a freak to be thrown to the curb, though -- thanks. Always good to know I'm liked and appreciated by my friends in the Party.

I believe abortion is morally wrong in almost every circumstance because it is the intentional murder of a defenseless human being. But I do not believe that abortion would be totally outlawed perhaps anywhere. Most pro-lifers would be very happy to see extremely late-term abortions outlawed or parents informed that their 15-year-old is having an abortion (as would apparently 60-80% of Americans). There will always be "zealots" - but rather than imposing one brand of zealotry by judicial fiat, why not let the states decide?

As far as states becoming islands of differing laws, isn't that what the 10th amendment allows for?